State v. Janes

• Decision Date: 03 February 1992
• Docket Number: No. 24252-1-I,24252-1-I
• Citation: 822 P.2d 1238,64 Wn.App. 134
• Parties: STATE of Washington, Respondent, v. Andrew G. JANES, Appellant.
• Court: Washington Court of Appeals

Page 134

64 Wn.App. 134

822 P.2d 1238

STATE of Washington, Respondent, v. Andrew G. JANES, Appellant.

No. 24252-1-I.

Court of Appeals of Washington,

Division 1.

Feb. 3, 1992.

As Amended Feb. 28, 1992.

Washington Appellate Defenders, Lenell Nussbaum, Seattle, for appellant.

Seth R. Dawson, Pros. Atty., Seth Aaron Fine, Deputy, Everett, for respondent.

AGID, Judge.

Andrew G. Janes appeals his conviction for the second degree murder of his stepfather, Walter Jaloveckas, and for two counts of second degree assault. He assigns error to the trial court's failure to allow an instruction on self-defense and to various evidentiary rulings excluding expert testimony regarding the battered child syndrome that he contends would have been relevant to establishing that defense. Appellant further challenges the information charging assault as constitutionally defective for failing to allege the element of intent. We agree that he should have been permitted to present evidence of the battered child syndrome and reverse.

On August 30, 1988, the appellant, Andrew Janes (Andy), shot and killed his stepfather, Walter Jaloveckas, as Jaloveckas walked through the front door of their home. Andy then triggered the alarm system in the home to summon the police and fire department. When police arrived Andy fired at them, as well as at some empty cars and at the telephone in his house. Mountlake Terrace Police Officer James Blackburn and a bystander, Eve Flores, were slightly injured in the shooting.

Andy was charged by information with one count of murder in the first degree (premeditated), and two counts of assault in the second degree. ¹ He was found guilty of the lesser included offense of murder in the second degree and of both assault charges. The trial court found that Andy had suffered a pattern of ongoing abuse at the hands of the decedent and imposed an exceptional sentence of 10 years on the murder conviction. ² Andy appeals his conviction with respect to all three counts.

An understanding of the nature of the relationship between Andy and his stepfather is important to an understanding of our decision. Jaloveckas moved in with the Janes family in November 1978 when Andy was 7 years old, after Andy's biological father abandoned the family earlier that year. After the family moved into a home of their own in 1980, Jaloveckas became increasingly abusive and subject to unpredictable and sometimes physically violent outbursts of anger. There is extensive testimony in the record with respect to the details of the abuse, which included incidents where Jaloveckas beat or hit Andy, his brother and Gale Janes, their mother, smashed a stereo and bicycles with a sledgehammer, and threatened to torture, kill, or send the boys away for such transgressions as being tardy in completing chores or taking some of his marijuana. ³ While Jaloveckas' actions were reported to Child Protective Services (CPS) on three occasions, CPS did not follow up on those reports. On at least two of the three occasions Ms. Janes or Andy requested that CPS not follow up out of fear of reprisal by Jaloveckas.

On the evening of August 29, an incident occurred that the appellant contends triggered the events of the next day. After a loud argument during which Jaloveckas yelled angrily at Ms. Janes for about 45 minutes, Jaloveckas stopped by Andy's room and spoke to him in a low tone. Ms. Janes testified that when Jaloveckas used a low tone, it usually meant that he was making a threat. She did not hear what he actually said, and Andy could not remember what was said. The next morning Ms. Janes woke Andy after Jaloveckas left for work and told him that he should be sure to get all his work done because Jaloveckas was still angry.

One of Andy's school friends testified that he stopped by Andy's home on the way to school. Andy brought out a shotgun and loaded it, showed it to his friend and told him he was going to kill Jaloveckas. Andy left the shotgun under some clothes in his room, went to school and left after two classes. After returning home, Andy broke a padlock off the door to the bedroom shared by Ms. Janes and Jaloveckas in which Jaloveckas kept his supply of alcohol and marijuana. Andy drank whiskey, smoked marijuana, and retrieved a shotgun and loaded 9-mm. handgun that belonged to Jaloveckas. When Jaloveckas returned at 4:30 p.m., Andy shot him as he entered the home. Jaloveckas died from two gunshot wounds to the head.

There is no dispute that Andy killed his stepfather. Instead, defense counsel sought to base Andy's defense on a theory of justifiable homicide. The defense argued that Andy acted in self-defense because he perceived himself to be in imminent danger of serious bodily harm as a consequence of a condition analogous to "battered woman syndrome," stemming from the 10 years of abuse he had suffered at the hands of his stepfather. ⁴ The trial court ruled, however, that in the absence of evidence showing that Andy was in fact in imminent danger at the time of the shooting, there was an insufficient factual basis to support giving an instruction regarding self-defense.

Although the court did not permit testimony supporting the defense of justifiable homicide, it did permit the defense experts, Dr. Christopher Varley and Dr. Bruce Olson, to testify on the defense of diminished capacity. Both testified that Andy suffered from post traumatic stress disorder, primarily as a result of abuse at the hands of Jaloveckas, and that as a result of this disorder, Andy's capacity for premeditation was "impaired." The court instructed the jury that it could consider a mental illness or disorder where the existence of a particular mental state was a necessary element of a particular crime.

I. BATTERED CHILD SYNDROME

A defendant is entitled to have his theory of the case submitted to the jury under appropriate instructions when the theory is supported by sufficient evidence in the record. State v. Griffith, 91 Wash.2d 572, 574, 589 P.2d 799 (1979). The issue of self-defense is properly raised if the defendant produces "any evidence" tending to show self-defense. State v. Adams, 31 Wash.App. 393, 396, 641 P.2d 1207 (1982) ("[O]nly where no plausible evidence appears in the record upon which a claim of self-defense might be based is an instruction on [self-defense] not necessary.") See also State v. Walker, 40 Wash.App. 658, 661-662, 700 P.2d 1168, review denied, 104 Wash.2d 1012 (1985), citing State v. Acosta, 101 Wash.2d 612, 621, 683 P.2d 1069 (1984) (to be entitled to an instruction on self-defense, the defendant bears the initial burden of producing some credible evidence tending to show the defendant acted in self-defense). The question of whether there is sufficient evidence to raise a claim of self-defense is a question of law for the trial court, which must apply a subjective standard, viewing the evidence from the perspective of the defendant at the time of the act. State v. McCullum, 98 Wash.2d 484, 488-489, 656 P.2d 1064 (1983); State v. Adams, 31 Wash.App. 393, 396, 641 P.2d 1207 (1982). Here, the trial court held, following an offer of proof, that evidence of the battered child syndrome could not, as a matter of law, support a finding of self-defense because, it concluded, there was no "imminent threat" to Andy at the time of the shooting. It therefore excluded the testimony and refused the proffered instruction. For the reasons stated below, we hold that it was error to exclude testimony concerning the battered child syndrome and to refuse to submit the issue of the reasonableness of Andy's perceptions, in light of expert testimony on the battered child syndrome, to the jury. ⁵

Self-defense requires a showing of (1) reasonable apprehension of a design to commit a felony or to do some great personal injury, and (2) imminent danger of that design being accomplished. RCW 9A.16.050(1); State v. Negrin, 37 Wash.App. 516, 521, 681 P.2d 1287, review denied, 102 Wash.2d 1002 (1984). While the "imminent danger" prong requires the jury to find that the victim honestly and reasonably believed that the aggressor intended to inflict serious bodily injury in the near future, Negrin, 37 Wash.App. at 521, 681 P.2d 1287, there need be no evidence of an actual physical assault to demonstrate the immediacy of the danger. Walker, 40 Wash.App. at 662, 700 P.2d 1168. Fear alone does not entitle a defendant to a self-defense instruction. State v. Kidd, 57 Wash.App. 95, 786 P.2d 847, review denied, 115 Wash.2d 1010, 797 P.2d 511 (1990) (criminal culpability is not lessened when one acts in self-defense due to an honest but unreasonable belief in the need for force); State v. Bell, 60 Wash.App. 561, 566-567 805 P.2d 815,review denied, 116 Wash.2d 1030, 813 P.2d 582 (1991) (a good faith belief that deadly force is necessary is not in itself sufficient to support a self-defense instruction). Some evidence of aggressive or threatening behavior, gestures, or communication by the victim is typically required to show that the defendant's belief that he or she was in imminent danger of great bodily harm was reasonable. Walker, 40 Wash.App. at 663, 700 P.2d 1168.

As noted above, Washington uses a subjective standard to evaluate the imminence of the danger a defendant faced at the time of the act. This requires the court and the jury to evaluate the reasonableness of the defendant's perception of the imminence of that danger in light of all the facts and circumstances known to the defendant at the time he acted, including the facts and circumstances as he perceived them before the crime. State v. Wanrow, 88 Wash.2d 221, 235-236, 559 P.2d 548 (1977). Because battering itself can alter the defendant's perceptions, Washington courts have held that expert testimony with respect to the battered woman syndrome is admissible to explain a woman's perception that she had no alternative but to act in the manner that she did. ⁶ As the Walker court explained:

The...